FREDERICK J. SCULLIN, JR., Senior District Judge.
Pending before the Court are Plaintiff's objections to Magistrate Judge Dancks' August 31, 2018 Order and Report-Recommendation. See Dkt. No. 58.
Plaintiff commenced this action, pursuant to 42 U.S.C. § 1983, claiming that Defendants violated his constitutional rights when they punished him for possessing personal photographs depicting gang-related "hand gestures" in violation of DOCCS Disciplinary Rule 105.13. See Dkt. No. 16 ("Second Amended Complaint"). Plaintiff also alleged that Defendants Korines, Kober and Pingotti conspired to confiscate his photographs and subject him to improper discipline in violation of his constitutional rights. See id. at 10.
Defendants moved for summary judgment. See Dkt. No. 45. Plaintiff opposed that motion. See Dkt. No. 50. On August 31, 2018, Magistrate Judge Dancks issued an Order and Report-Recommendation, in which she recommended that this Court grant Defendants' motion for summary judgment, sua sponte dismiss Plaintiff's § 1983 conspiracy claim, and dismiss Plaintiff's Second Amended Complaint in its entirety. See Dkt. No. 57 at 39.
Plaintiff filed objections to those recommendations. See generally Dkt. No. 58. Generally, "Plaintiff object[ed] to the entire Report-Recommendation, in that the Court (Hon. Judge Dancks) clearly disregarded [his] contentions, in his memorandum of law in opposition to Defendants['] motion for summary judgment, along with various exhibits in support." See id. at ¶ 2. Furthermore, he objected to "the court[']s notion that [he] was afforded his minimal due process rights, to have a fair and impartial hearing and hearing officer; adequate/fair notice of prohibited conduct; untainted documentary evidence; right to be present at hearing; unbiased witness testimony; [and] right not to be punished for unconstitutionally vague and erratically enforced prison rule." See id. at ¶ 3.
In addition to these general objections, Plaintiff made the following specific objections:
After reviewing a magistrate judge's recommendations, the district court may accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court reviews de novo those portions of the magistrate judge's recommendations to which a party objects. See Pizzaro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). "`"If, however, the party makes only conclusory or general objections, . . . the Court reviews the Report and Recommendation only for clear error."'" Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 179741, *1 (N.D.N.Y. June 23, 2009) (quoting [Farid v. Bouey, 554 F.Supp.2d 301] at 306 [(N.D.N.Y. 2008)] (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y. 2007))). Finally, even if the parties file no objections, the court must ensure that the face of the record contains no clear error. See Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003) (quotation omitted).
Plaintiff asserts claims against Defendants Annucci, Rodriguez, Smith and Uhler based on their apparent supervisory positions, awareness of ongoing constitutional violations, and failure to prevent those violations from continuing. See Second Amended Complaint at ¶¶ 32-33, 80-84. Magistrate Judge Dancks found that the record demonstrated that these Defendants were not personally involved in any alleged violation of Plaintiff's constitutional rights and, therefore, recommended that the Court grant Defendants' motion for summary judgment with regard to Plaintiff's claims against these Defendants. See Dkt. No. 57 at 37-38.
Other than his general objection to the entire Report and Recommendation, Plaintiff has not raised any specific objection to this recommendation. Therefore, after reviewing the record relevant to this recommendation for clear error and, finding none, the Court accepts Magistrate Judge Dancks' recommendation and grants Defendants' motion for summary judgment with regard to Plaintiff's claims against Defendants Annucci, Rodriguez, Smith and Uhler because they were not personally involved in the alleged violation of Plaintiff's constitutional rights.
Magistrate Judge Dancks thoroughly analyzed the elements required to satisfy procedural due process where an inmate is facing disciplinary charges. See Dkt. No. 57 at 20-31. Plaintiff generally "objects to the court[']s notion that [he] was afforded his minimal due process rights[.]" See Dkt. No. 58 at ¶ 3. In addition, Plaintiff objects to the Court's disregard of
See Dkt. No. 58 at ¶ 4.
This objection relates to the vagueness argument that Plaintiff asserted in his memorandum of law in opposition to Defendants' motion for summary judgment. See Dkt. No. 50-3 at 3-7.
Plaintiff's objection is without merit. Magistrate Judge Dancks did
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Courts in this Circuit have recognized due process vagueness challenges to prison disciplinary rules and directives. See Chatin v. Coombe, 186 F.3d 82, 88-89 (2d Cir. 1999); Leitzsey v. Coombe, 998 F.Supp. 282, 289 (W.D.N.Y. 1998) (holding that "inmates must be free to avoid prohibited conduct, and prison regulations must therefore place them on notice of the actions that could subject them to discipline" (citation omitted)).
Booker v. Maly, No. 9:12-CV-246, 2014 WL 1289579, *7 (N.D.N.Y. Mar. 31, 2014) (quotation omitted).
In this case, Plaintiff focuses on the Note to Rule 105.13, which, among other things, defines "printed or handwritten gang or gang related material" as "written material." However, the Rule encompasses much more than "written material" as demonstrated by the use of the phrase "which includes but is not limited to." Specifically, in addition to certain "written material," the Rule also proscribes the displaying, wearing, possessing, distributing or using of gang insignia or materials,
For all these reasons, the Court concludes, as did the court in Booker, that Rule 105.13 is not unconstitutionally vague.
Plaintiff also objects to Magistrate Judge Dancks' alleged failure to recognize that he "was approved to possess his pictures through the media review process." See Dkt. No. 58 at 2. Plaintiff is apparently arguing that, because he was allowed to possess these photographs at other facilities, Defendants should have allowed him to possess them at all DOCCS facilities. The Court agrees with the court in Booker that "[t]he fact that the plaintiff may have been able to possess those pictures at other facilities does not undermine the defendants' desire to regulate gang-related material at their facility." Booker, 2014 WL 1289579, at *13 (citation omitted).
Finally, Plaintiff objects to Magistrate Judge Dancks' alleged failure "to investigate . . . the reason why the Superintendent's hearing was reversed and expunged on August 1, 2018." See Dkt. No. 58 at ¶ 6. Magistrate Judge Dancks "granted Plaintiff's August 7, 2018, letter request seeking to attach the August 1, 2018, determination as an addendum to [his] opposition response." See Dkt. No. 57 at 16 n.6 (citing Dkt. Nos. 55, 56). She also specifically cited that determination, which stated that
See Dkt. No. 57 at 16 (quoting Dkt. No. 50-8).
Magistrate Judge Dancks also noted that the decision was stamped "`EXPUNGED.'" See id. (quoting [Dkt. No. 50-8] at 2).
Plaintiff attached to his objections a "Memorandum" dated August 1, 2018, and addressed to "Superintendent Paul T Piccolo[,] Southport Correctional Facility" from "Donald Venettozzi, Director Special Housing/Inmate Discipline." See Dkt. No. 58 at 6. The Memorandum states, in pertinent part, as follows:
See id.
Not only was Magistrate Judge Dancks not required to investigate the reason that the Superintendent's Hearing was reversed, it would have been improper for her to do so. The Court's review is restricted to the evidence that is in the record. Neither Plaintiff nor Defendants had submitted this Memorandum to the Court for its review prior to Magistrate Judge Dancks' issuance of her Order and Report-Recommendations. In fact, the Court did not know about the existence of this Memorandum until Plaintiff attached it to his objections to Magistrate Judge Dancks' recommendations.
Furthermore, even if Magistrate Judge Dancks had had this Memorandum before her, it would not have changed the result. As Magistrate Judge Dancks explained in her Order and Report-Recommendation, "although [the decisions from both hearings] were ultimately administratively reversed and expunged, upon review of the evidence, the Court finds `some evidence' to support Pingotti's and Liberty's guilty determinations." See Dkt. No. 57 at 27-28 (citing Sira, 380 F.3d at 76 n.9 (noting the director's reversal of the disciplinary ruling does not automatically establish a federal claim") (quoting Foster v. Coughlin, 76 N.Y.2d 964, 966 (1990)); Alicea, 387 F. Supp. 2d at 232-33 (same); Moore v. Griffin, No. 9:13-CV-616 (FJS/TWD), 2015 WL 5330366, at *12 (N.D.N.Y. Sept. 11, 2015) ("While the guilty determination was later reversed, there was "some evidence" to support [the hearing officer's] decision that [the plaintiff] was guilty of the charges set forth in the misbehavior report."); Shabazz v. Bezio, No. 9:10-CV-1212 (NAM/DEP), 2014 WL 4794432, at *2 (N.D.N.Y. Sept. 25, 2014) (finding "some evidence" to support the hearing officer's guilty determination that was later reversed on appeal)). The explanation in the Memorandum that the decision was reversed because "circumstances surrounding the incident raise questions to inmate's culpability" does not change the fact that the record clearly demonstrates that there was "some evidence" to support the hearing officers' decisions that Plaintiff was guilty of violating Rule 105.13.
In sum, for all of the above-stated reasons, the Court concludes that Defendants did not violate Plaintiff's right to due process.
Magistrate Judge Dancks recommended that this Court sua sponte dismiss Plaintiff's § 1983 conspiracy claim against Defendants Kober, Pingotti and Korines for failure to state a claim upon which relief could be granted on the ground that, if the Court accepted her recommendation and granted Defendants' motion for summary judgment with regard to the underlying causes of action, Plaintiff's § 1983 conspiracy claim would also fail as a matter of law. See Dkt. No. 57 at 39 (citing Bristol v. Nassau Cty., No. 08 Civ. 3480 (AMD) (SIL), 2016 WL 2760339, at *7 (E.D.N.Y. May 12, 2016) ("Because, the plaintiff's claim that the individuals [sic] defendants violated his constitutional rights is dismissed as a matter of aw, his section 1983 conspiracy claim also fails as a matter of law.") (citing Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) ("Because neither of the underlying section 1983 causes of action can be established, the claim for conspiracy also fails."))).
Plaintiff objects to Magistrate Judge Dancks' recommendation that this Court sua sponte dismiss his conspiracy claim against Defendants Kober, Pingotti and Korines because, according to Plaintiff, they "blatantly committed fraud, by confiscating and punishing [him]." See Dkt. No. 58 at ¶ 8 (citing Dkt. No. 16 at paragraphs 35-40 [and] paragraph 60). The Court has reviewed Plaintiff's Second Amended Complaint, particularly paragraphs 35-40 and 60, on which Plaintiff relies to support his objections. Although Plaintiff alleges that each of these Defendants violated his constitutional rights by engaging in certain actions, the Court concludes that these allegations are not sufficient to state a claim that Defendants Kober, Pingotti and Korines conspired against him. Moreover, because the Court has concluded that Defendants did not violate Plaintiff's constitutional rights, his § 1983 conspiracy claim fails as a matter of law.
Having reviewed the entire record in this case, including Magistrate Judge Dancks' August 31, 2018 Order and Report-Recommendation, Plaintiff's objections thereto, and the applicable law, and for the above-stated reasons, the Court hereby